In the recent case of Ramos v. Louisiana, the U.S. Supreme Court held that the “Sixth Amendment right to a jury trial—as incorporated against the States by way of the Fourteenth Amendment—requires a unanimous verdict to convict a defendant of a serious offense.” A majority of the Justices agreed on that much. A majority also agreed that the racist history of the state laws allowing for nonunanimous jury verdicts was important to take into account and weighed against the constitutionality of those laws. But a majority could not agree on underlying questions about the nature and power of precedent, and the Justices took the case as an opportunity to advance their own distinct views on the topic. The decision showcases a convoluted debate about whether, when, and how past cases are binding on new ones. On these trans- substantive questions, the Court is radically fractured, offering up a cacophony of five different conceptions of precedent, with no more than three Justices agreeing on any one of them.
Precedent on Precedent
- Nina Varsava
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- Assistant Professor, University of Wisconsin Law School.